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HomeMy WebLinkAbout2002-3253 Civil DUANE LEBO, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW : 02-3253 CIVIL : BOROUGH OF MT. HOLLY : SPRINGS, : Defendant : IN RE: PETITION FOR SUPERSEDEAS/APPLICATION FOR STAY OF ORDER BEFORE HESS, J. OPINION AND ORDER In this case, the petitioner has appealed from a decision and order of the Borough of Mt. Holly Springs, dated May 15, 2007, which determined that he was not eligible to collect a disability pension. The order, further, contained a direction that the plaintiff repay pension moneys he had received. In this petition for supersedeas, the plaintiff seeks reinstatement of his pension benefits pending a determination on the merits of his appeal. For the reasons which follow, we will grant his petition. The salient details concerning the background of this case are not in dispute. The plaintiff was formerly employed by the defendant as a police officer and chief of police. In May of 2001, the Borough Council of Mt. Holly Springs advised the plaintiff that it was considering removing him as a police officer and chief of police due to a disability, that it was considering the plaintiff’s honorable discharge and it suggested that the plaintiff consider the option of voluntarily resigning as police chief. Thereafter, the plaintiff, then Police Chief Lebo, submitted his written resignation which was accepted. In October of 2001, the plaintiff, with the assistance of the township secretary, completed an application for disability benefits. On October 13, NO. 02-3252 CIVIL 2001, Chief Lebo began to receive pension benefits. In April of 2002, the Borough’s pension funding agent, Principle Life Insurance Company, notified the defendant that because disability/retirement benefits had been awarded to the plaintiff and because the defendant’s account was otherwise underfunded, the defendant would be required to contribute as much as $55,000.00 to the fund. It was then, for the first time, that the defendant decided to hold a hearing to consider the plaintiff’s eligibility for his disability pension benefits. Following that hearing, held in May of 2002, the Borough determined that the plaintiff was ineligible for disability benefits and therefore discontinued payments and directed the plaintiff to reimburse the pension plan for all disability pension benefits previously received. The plaintiff appealed that decision. In our opinion and order dated April 30, 2003, we remanded the matter to the Borough for further hearing. The reason for our remand appears in our opinion as follows: Thus, the question continues to remain whether Chief Lebo became disabled, to the extent that he was prevented from engaging in his normal duties as a police officer, as a result of performing police work. The Borough, in its written decision of June 10, 2002, places the entire onus of establishing the service-related disability on Lebo. This ignores the fact that the proceeding before the Borough was not conducted to determine Chief Lebo’s eligibility for disability but rather was conducted, in reality, to determine whether disability payments should be terminated. The Chief had been approved for disability in October of 2001. The Borough’s hearing took place in May of 2002. If the Borough failed to follow its own procedures in initially awarding disability, that can hardly be said to be the fault of Chief Lebo. In the meantime, it appears to be the well-established rule that the burden of proof, at hearings where the 2 NO. 02-3252 CIVIL issue is the termination of disability benefits, is on the employer…. Here, the Borough not only terminated Chief Lebo’s benefits but required him to repay the monies that he received through the pension plan. It did so following a hearing at which no testimony was adduced on the extent to which, if any, Chief Lebo’s disability was related to his work as a police officer. Because of this error of law, we are constrained to remand this matter back to the Borough Council for further hearing. (Emphasis in original.) (Citations omitted.) Opinion of April 30, 2003, p. 4. A remand hearing was eventually held in January of 2007. This hearing resulted in the order from which Lebo now appeals. In April of 2003, we concluded that the proceedings being brought by the Borough were for the purpose of terminating disability benefits. We were not asked, at that time, to consider the question of whether, if disability payments were terminated, the Borough was required as the alternative to offer reinstatement of the plaintiff to his former position. Nor were we informed concerning the holding in Wertz v. Dept. of Corrections, 609 A.2d 899 (Pa.Cmwlth. 1992). In the Wertz case, the defendant had begun to receive disability benefits in November of 1989. In January of 1990, his benefits were terminated because the Department of Corrections determined he was no longer eligible to continue receiving them. The Commonwealth Court reversed the order terminating benefits. It noted that the Department of Corrections had had the opportunity to investigate Wertz’s claim prior to awarding him benefits but chose to forego an investigation. The court held that in order to terminate benefits, it was incumbent upon the Department to prove that Wertz was no longer disabled. The matter sub judice involves an analogous situation. 3 NO. 02-3252 CIVIL Under the Borough of Mt. Holly Springs Police Pension Plan, disability payments, once commenced, “shall continue through the first day of the month before the earliest of his Retirement Date (Normal Retirement Date, if earlier), the date of his death or the day following the date he is no longer Totally and Permanently Disabled.” Plan, Section 5.03. If it is determined that the employee is no longer disabled, then he has one month to return to employment. None of the preconditions for termination have been met in this case. Instead, the Borough contends that the hearing, held in January of 2007, was a hearing at which it could decide Chief Lebo’s eligibility to receive disability payments in the first instance. In light of the holding in Wertz and the other facts and circumstances of this case, we do not believe that the Borough will be ultimately successful in advancing this argument. To the contrary, we believe that it is the plaintiff/petitioner who is more likely to prevail on the merits. Our courts have determined that pending an administrative appeal, a person seeking a supersedeas or stay of order must demonstrate: 1) that the applicant is likely to prevail on the merits; 2) the applicant will be irreparably injured without a stay; 3) a stay will not adversely affect other interested parties; and 4) a stay will not adversely affect the public interest. We have already discussed the merits of this matter. Without his disability payments, the plaintiff is hanging by a financial thread. There is no question that he will be irreparably injured without a stay. By the same token, we do not believe that the entry of a supersedeas will create an undue adverse affect on any private party nor will it affect the public interest. 4 NO. 02-3252 CIVIL ORDER rd AND NOW, this 23 day of August, 2007, the petition of the plaintiff for supersedeas/application for stay of order is GRANTED. It is directed that the defendant immediately notify its funding agent to reinstate the plaintiff’s disability payments, including any delinquent payments, and continue the same pending the outcome of plaintiff’s appeal. The order of the Borough of Mt. Holly Springs requiring the plaintiff to repay any benefits he has thus far received is STAYED. BY THE COURT, _______________________________ Kevin A. Hess, J. Joseph D. Buckley, Esquire For the Plaintiff Keith O. Brenneman, Esquire For the Defendant :rlm 5 DUANE LEBO, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION - LAW : 02-3253 CIVIL : BOROUGH OF MT. HOLLY : SPRINGS, : Defendant : IN RE: PETITION FOR SUPERSEDEAS/APPLICATION FOR STAY OF ORDER BEFORE HESS, J. ORDER rd AND NOW, this 23 day of August, 2007, the petition of the plaintiff for supersedeas/application for stay of order is GRANTED. It is directed that the defendant immediately notify its funding agent to reinstate the plaintiff’s disability payments, including any delinquent payments, and continue the same pending the outcome of plaintiff’s appeal. The order of the Borough of Mt. Holly Springs requiring the plaintiff to repay any benefits he has thus far received is STAYED. BY THE COURT, _______________________________ Kevin A. Hess, J. Joseph D. Buckley, Esquire For the Plaintiff Keith O. Brenneman, Esquire For the Defendant :rlm